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Defenders of Wildlife v. Bernal

ELR Citation: 30 ELR 20403
Nos. No. 98-16099, 204 F.3d 920/(9th Cir., 02/28/2000)

The court affirms a district court order lifting a temporary restraining order and denying environmental groups' motion to permanently enjoin the construction of a new school on property that allegedly contains potential habitat for the endangered cactus ferruginous pygmy owl. The court first holds that the factual findings of the district court support the conclusion that the construction of the school complex will not result in an Endangered Species Act (ESA) prohibited "take" of the pygmy owl. There was a reasonable inference that one or more pygmy owls used a portion of the property at issue. However, the property used by the pygmy owls is within a parcel that will remain undeveloped. Further, there was insufficient evidence to prove that a pygmy owl used any portion of the property on which the school will be built. Moreover, the district court judge concluded that the facts do not support a finding that the pygmy owl will be harassed by human activity at the school.

The court then holds that the school was not required to apply for an ESA §10 incidental take permit. Pursuing an incidental take permit is not mandatory, and a party can choose whether to proceed with the permitting process without obtaining an incidental take permit. The court next holds that the district court did not commit clear error by excluding testimony of a conservation biologist and a U.S. Fish and Wildlife Service pygmy owl expert. The proposed testimony of the biologist concerned background information, and the groups failed to show that the exclusion of the testimony had any prejudicial effect. Similarly, the expert's testimony was properly excluded because the utility of her testimony would have been outweighed by the government's interest in avoiding undue burden on its personnel. The court also holds that the district court did not abuse its discretion in denying the environmental groups' motion for a new trial based on newly discovered evidence because the groups failed to show why the offered evidence could not have been obtained with the exercise of due diligence at the time of the trial.

Counsel for Plaintiffs
Eric Glitzenstein
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Defendants
Denise M. Bainton
DeConcini, McDonald, Yetwin & Lacy
2525 E. Broadway Blvd., Ste. 200, Tucson AZ 85716
(520) 322-5000

Before Fletcher, J., concurring, and Trott, J.